Citation Nr: 21039888 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-43 946 DATE: July 1, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for other specified trauma and stressor related disorder is remanded. Entitlement to service connection for substance abuse, to include as secondary to service-connected disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1989 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision. In August 2019, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. While the Veteran has not formally sought entitlement to a TDIU rating during the pendency of this appeal, the issue of entitlement to a TDIU rating has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the issue of entitlement to a TDIU rating is also currently before the Board, and as such, the issue is stated on the cover page and discussed further below. Unfortunately, the Veteran's claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims, so he is afforded every possible consideration. 1. Entitlement to a disability rating in excess of 30 percent for other specified trauma and stressor related disorder is remanded. The Board finds that a new VA examination is warranted to assess the current nature and severity of the Veteran's service-connected other specified trauma and stressor related disorder. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). The Veteran was last afforded a January 2015 VA Review Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire. The examination report states that the Veteran does not have a relationship with his adult daughter, but he has several friends. He visits with his friends socially and he and his wife shop and eat at restaurants together often. The Veteran advised that his temper is better, and while he averages two to three hours of sleep per night, he does not have difficulty falling asleep. The examination report indicates that he has depressed mood and mild memory loss, such as forgetting names, directions, or recent events that applies to his diagnosis. Since that time, the evidence suggests that the Veteran's other specified trauma and stressor related disorder may have worsened. During the August 2019 hearing, the Veteran's attorney stated that his symptoms have worsened since the January 2015 examination and that a new examination is necessary. In particular, the Veteran advised that he has problems with his memory, and specifically has difficulty remembering what tasks he set out to accomplish and take his medicine. He has mood swings and is irritable. He has difficulty falling and staying asleep, which has worsened recently. The Veteran can sleep two to four hours per night and at times, he wakes up in a panic. He has paranoia when he hears guns firing for celebrations or during the holidays. He isolates himself from other people and from public spaces like grocery stores. During the August 2019 hearing, the Veteran's spouse stated that he has difficulty participating in conversations, experiences nervousness, agitation, has mood swings, and becomes irritated quickly. He has great difficulty sleeping. He isolates himself from others and his relationships with family have worsened as a result. He also avoids going to public spaces, like restaurants. The Board notes that the Veteran's claims folder contains a September 2019 private medical examination evaluating the severity of the acquired psychiatric disorders identified by the examiner. The examiner concluded that the Veteran's acquired psychiatric disorder diagnoses warrant a 70 percent disability rating. However, the Board finds the examination is inadequate for rating purposes. In support, the examiner attributed his symptoms to unspecified mood disorder and PTSD, two diagnoses that are not service-connected. Further, while the examination report provides that the Veteran has a history of recurrent suicidal ideation, with one attempt by gunshot, this finding is not supported by the Veteran's medical records and he has previously denied a history of recurrent suicidal ideation and present suicidal ideation. Therefore, considering that the Veteran's last examination occurred more than six years ago and the evidence that his disability picture has changed, the Board finds that the current evidence of record does not adequately reveal the present state of the Veteran's other specified trauma and stressor related disorder. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). 2. Entitlement to service connection for substance abuse, to include as secondary to service-connected disabilities is remanded. The Veteran maintains that his substance abuse is related to his service-connected disabilities. For the reasons discussed below, a remand is warranted for further development. The Veteran's January 2015 VA Review Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire states that the Veteran has diagnoses of cocaine and marijuana use disorders. The examination report states that it is less likely than not that his drug use is caused by his service or secondary to his service-connected PTSD. His service treatment records are silent for reports of drug use and he reported his drug use did not become significant and problematic until after his discharge from active service. The medical opinion also states that during the examination, the Veteran attributed his drug use to emotional upset related to returning home from Gulf War deployment and a desire to self-medicate his pain and discomfort associated with his medical conditions. The Veteran also experienced a significant post-military stressor, the death of his mother, around the time he began using drugs. The Board finds that the January 2015 medical opinion is inadequate as the examiner did not consider whether the Veteran's substance abuse was aggravated beyond its natural progression by his service-connected other specified trauma and stressor related disorder. 38 C.F.R. § 3.310(b); see El-Amin v. Shinseki, 26 Vet. App. 136 (2012) (a medical opinion addressing secondary service connection must discuss both causation and aggravation). The medical opinion also failed to consider whether the Veteran's other service-connected disabilities or their associated pain caused or aggravated his substance abuse. Therefore, an addendum medical opinion is necessary to determine the nature and etiology of the Veteran's substance abuse. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board notes the issue of entitlement to a TDIU rating was not certified for appeal. However, the issue of a TDIU rating was raised by the record when the September 2019 private examiner advised that the Veteran's acquired psychiatric disorders render him unemployable. The United States Court of Appeals for Veterans Claims, citing Rice, reasoned that a request for a TDIU rating is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability or disabilities. Accordingly, the Board finds that the issue of entitlement to a TDIU rating has been raised and that the Board has jurisdiction over such issue as part and parcel of the Veteran's claim for an increased rating for service-connected other specified trauma and stressor related disorder. Rice, 22 Vet. App.at 453-54. The Board finds that the issue of entitlement to a TDIU rating is dependent on the outcome of the Veteran's claim for an increased rating that is remanded herein since any potential increased rating of a remanded issue could result in a higher overall disability rating. Therefore, the issue of entitlement to a TDIU rating is inextricably intertwined with the issue on appeal. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. Provide the Veteran notice pertaining to the issue of entitlement to a TDIU rating that complies with the Veterans Claims Assistance Act of 2000 (VCAA). 2. Provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and VA Form(s) 21-4192, Request for Employment Information in Connection with Claim for Benefits, for any identified employer(s). 3. Obtain the Veteran's VA treatment records for the period from January 2015 to the present. 4. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected other specified trauma and stressor related disorder. The examiner must review the claims folder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to connected other specified trauma and stressor related disorder alone. 5. Obtain an addendum medical opinion by an appropriate examiner to determine the nature and etiology of the Veteran's substance abuse. If the examiner determines that an additional examination of the Veteran is necessary in order to provide the requested opinion(s), then the Veteran should be scheduled for an appropriate examination. The examiner must review the claims folder. The examiner must opine: (a.) Whether the Veteran's substance abuse is at least as likely as not (50 percent probability or greater) proximately due to his service-connected other specified trauma and stressor related disorder. (b.) Whether the Veteran's substance abuse is at least as likely as not (50 percent probability or greater) proximately due to his service-connected degenerative disc disease, lumbar spine, chronic fatigue syndrome, tinea pedis, bilateral, radiculopathy, right lower extremity, and/or costochondritis/atypical chest pains, to include by any pain and discomfort associated with these conditions. (c.) Whether the Veteran's substance abuse is at least as likely as not (50 percent probability or greater) aggravated, i.e., worsened beyond its natural progression, by his service-connected other specified trauma and stressor related disorder. (d.) Whether the Veteran's substance abuse is at least as likely as not (50 percent probability or greater) aggravated, i.e., worsened beyond its natural progression, by his service-connected degenerative disc disease, lumbar spine, chronic fatigue syndrome, tinea pedis, bilateral, radiculopathy, right lower extremity, and/or costochondritis/atypical chest pains, to include by any pain and discomfort associated with these conditions. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 6. Schedule the Veteran for any additional necessary VA examination(s) of his service-connected disabilities necessary to evaluate the issue of entitlement to a TDIU rating. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.